FOIA Request May Disgorge Thousands of Federal Contractor EEO-1 Reports – Deadline to Object Is September 19, 2022

On August 18, the US Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”) announced that it had received a Freedom of Information Act (“FOIA”) request from the Center for Investigative Reporting (“CIR”), for all Type 2 Consolidated EEO-1 Reports filed by federal contractors from 2016-2020 (“Covered Contractors”) and that OFCCP has reason to believe that the information requested may be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial or financial information and trade secrets. Accordingly, OFCCP has provided Covered Contractors with 30 days, i.e., until September 19, 2022, to submit written objections to the public release of their Type 2 EEO-1 Reports.

CIR’s FOIA request asks for a spreadsheet of all consolidated Type 2 EEO-1 reports for all federal contractors, including “first-tier subcontractors,” i.e., subcontractors that contracted directly with a prime federal contractor. Type 2 EEO-1 reports are one of several different types of reports that multi-establishment employers must file annually, which consist of a consolidated report of demographic data for all employees at headquarters as well as all establishments, categorized by race/ethnicity, sex, and job category.

OFCCP has created a web form through which Covered Contractors may submit their objections and, to facilitate the comment process, strongly encourages using the portal. Contractors may also, however, submit written objections via email at [email protected], or by mail addressed to ATTN: FOIA Officer (FRN), Office of Federal Contract Compliance Programs, Division of Management and Administrative Programs, 200 Constitution Avenue, N.W., Suite C3325, Washington, D.C.  20210.

OFCCP has FAQs on its website to provide information about the response portal form process and to address initial questions contractors may have about submitting comments.

OFCCP advises that objections filed by Covered Contractors with respect to CIR’s FOIA request should include the first and last name of the Covered Contractor’s point of contact (“POC”), the POC’s phone number and email address, the company’s name and address and the parent company’s EEO-1 unit number, and should, at minimum, address the following questions in detail so that OFCCP may evaluate the objection to determine whether the information should be withheld or disclosed pursuant to FOIA Exemption 4:

• What specific information from the EEO-1 Report does the contractor consider to be a trade secret or commercial or financial information?

• What facts support the contractor’s belief that this information is commercial or financial in nature?

• Does the contractor customarily keep the requested information private or closely held? What steps have been taken by the contractor to protect the confidentiality of the requested data, and to whom has it been disclosed?

• Does the contractor contend that the government provided an express or implied assurance of confidentiality? If no, were there express or implied indications at the time the information was submitted that the government would publicly disclose the information?

• How would disclosure of this information harm an interest of the contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor’s economic or business interests)?

While contractors should address the latter point, they may also wish to note that under the standard set forth by the Supreme Court in Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019), such evidence should not be required for Exemption 4 to apply.

The OFCCP will consider timely objections prior to deciding whether to disclose or withhold the Covered Contractor’s information under FOIA Exemption 4. If OFCCP determines that disclosure is appropriate notwithstanding the submitter’s objection, the agency will provide the submitter written notice of the reason for the decision, and a specified disclosure date that is a reasonable time subsequent to the notice. This is presumably to afford the contractor time to seek judicial relief from the disclosure decision, if the contractor believes it is appropriate to do so.